Judicial Vacancies

January 28, 1998

The Chief Justice of the United States Supreme Court has spoken out forcefully on the judicial vacancy crisis that is plaguing our Federal courts. He is correct that: AVacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal judiciary. Partisan and narrow ideological efforts to impose political litmus tests on judicial nominees and to shut down the judiciary must stop.

We begin 1998 still facing vacancies of about one out of every 10 judgeships and more than one-third are judicial emergency vacancies, which have been empty for more than a year and one-half. Unfortunately, during the last three years of Republican control, the Senate has barely matched the one-year total of judges confirmed in 1994 when we were on course to end the vacancy gap.

In the 1996 session, the Senate confirmed only 17 judges and none for the Federal Courts of Appeals. We began last year with the Chief Justice of the United States Supreme Court expressing in the Year-End 1996 Report on the Federal Judiciary his Ahope that the Senate would Arecognize that filling judicial vacancies is crucial to the fair and effective administration of justice.

Through the course of last year, at virtually each meeting of the Judiciary Committee, at each confirmation hearings and in a number of statements on the Senate floor, I urged the Senate, the Republican leadership and those responsible for holding up much-needed judges to abandon those ill-advised efforts.

In July, seven national lawyer organizations spoke out. In August, the Attorney General spoke about the Avacancy crisis that has left so many Americans waiting for justice, the Aunprecedented slowdown in the confirmation process and its Avery real and very detrimental impacts on all parts of our justice system.

Last September, the President of the United States pointed out the dangers of partisan politics infecting the confirmation process and called upon the Senate to fulfil its constitutional duty and end Athe intimidation, the delay, [and] the shrill voices.

In his 1997 Year-End Report, Chief Justice Rehnquist focussed again on the problem of Atoo few judges and too much work. He noted the vacancy crisis and the persistence of 26 judicial emergency vacancies and observed: ASome current nominees have been waiting a considerable time for a Senate Judiciary Committee vote or a final floor vote. The Senate confirmed only 17 judges in 1996 and 36 in 1997, well under the 101 judges it confirmed in 1994.

Last night in his State of the Union Address the President of the United States again returned to the matter of the vacancy crisis and the need to provide the courts with the judges and other resources they need effectively to administer federal criminal and civil justice across the country. The President did more than talk yesterday; he also sent us another dozen judicial nominees to help fill the vacancies. That brings to 54 the number of judicial nominees currently pending before the Senate.

The Senate still has pending before it 11 nominees who were first nominated two years ago, including five who have been pending since 1995. We will finally vote on one of them this afternoon.

There remains no excuse for the Senate=s delay in considering the nominations of such outstanding individuals as Professor William A. Fletcher, Judge James A. Beaty, Jr., Judge Richard A. Paez, M. Margaret McKeown, Susan Oki Mollway, Margaret M. Morrow, Clarence J. Sundram, Anabelle Rodriguez, Michael D. Schattman and Hilda G. Tagle. All of these nominees have been waiting at least 18 months and some more than two years for Senate action.

Although last year the Senate confirmed 36 judges, that must be seen in relation to the 120 vacancies through the course of the year and the 55 judgeships in addition to the current vacancies that the Judicial Conference urged Congress to authorize in order to meet workload demands. Last year=s confirmations did not approach the 58 judges confirmed in the 1995 session or even keep up with vacancies that arose from normal attrition.

Last year the President sent us 79 judicial nominations but the Senate completed action on fewer than half of them. The percentage of judicial nominees confirmed over the course of last year was lower than for any Congress over the last three decades and, possibly, at any time in our history. Left pending were 42 judicial nominees, including 21 to fill judicial emergencies.

Last year the Senate never reduced its backlog of pending judicial nominee below 20 and ended the year with a backlog of more than 40 nominees. With the dozen additional nominees received yesterday, the Senate=s backlog of nominees as we begin the year has topped 50.

The Administration is demonstrating its resolve to nominate good people to fill these vacancies, now let the Senate proceed to do its job.

In connection with the President=s national radio address last September 27, the Senate finally quickened the pace of judicial confirmations and during the last nine weeks of the last session, the Senate held five confirmation hearings and confirmed 27 judges.

In response to the criticism of the Chief Justice, the Republican Chairman of the Judiciary Committee argues that the Senate is on a steady course and making steady progress. However, it was only in the last nine weeks of the last session that we were able to achieve a pace that can make a difference. If the Senate will maintain that pace this year, we can end the judicial vacancy crisis that now threatens the administration of justice by our Federal courts.

This is the challenge that lies before us as Congress begins anew. The Chief Justice compared the past two years of Senate inaction to the record of the 1994 session, in which a Democratic Senate worked hard to consider and confirm 101 judges, including a Supreme Court justice. To make a difference, however, the Senate in 1998 need only maintain the pace that it reached last fall-- 27 judges every nine weeks. That should be the measure of the Senate=s effort this year.

It will be easy to monitor our progress. Any week in which the Senate does not confirm three judges is a week in which the Senate is failing to address the vacancy crisis. Any fortnight in which we have gone without a judicial confirmation hearing marks two weeks in which the Senate is falling farther behind.

I am delighted that the Majority Leader has scheduled three nominees for consideration by the Senate today. I thank him for his cooperation and attention to these matters. I look forward to prompt Senate consideration of the other five nominees still pending on the Senate calendar.

Likewise, I note that the Chairman of the Judiciary Committee has noticed a judicial confirmation hearing for next week. These are positive developments and signs that the Senate is taking to heart its constitutional duty to consider judicial nominees without further delay. I commend the Senator from Utah for his action, as well.

The warning from Chief Justice Rehnquist in his year-end report is more than a question of numbers. It is the independence and integrity of the Federal judiciary that is being threatened. The nominations backlog that perpetuates the judicial vacancies crisis is a function of the targeting of the Judicial Branch, just as the Executive Branch was targeted and shut down two years ago.

Pressure groups within the right wing of the Republican Party have been formed and money is being raised to the cry of Akilling Clinton judicial nominations. Constitutional amendments to undercut the independence of the judiciary have been introduced. Ideological impeachments have been threatened. The Republican leadership in the House speaks opening about seeking to Aintimidate Federal judges. The confirmation process is not immune from politics, but a particularly virulent strain has now infected the Senate and politicizing the process to the point of paralysis.

All of this threatens the integrity and independence of the judiciary and encumbers the judicial confirmation process. In too many courts, judges delayed means justice denied. Without judges, courts cannot try cases, sentence the guilty or resolve civil disputes. For more than 200 years, a strong and independent Federal judiciary has served as the bulwark against overreaching by the political branches of government and been the protector of our constitutional rights and liberties.

I hope that this new year will bring the realization by those who have started down this destructive path of attacking the judiciary and stalling the confirmation of qualified nominees to the Federal bench that those efforts do not serve the national interest. I hope that we can remove these important matters from partisan and ideological politics. I hope that our actions today will move us forward in the interest of the fair administration of justice.